Thursday, April 21, 2016

More listening, less regulation

Ezekiel Mutua, speaking as the Chief Executive Officer of the Kenya Films and Classification (or so it was reported by un-patriotic, possibly immoral layabouts who do not like Kenya and are enemies of Kenyan moral values) does not think that television advertisements (and other forms of advertisement) for prophylactics (that's "condoms for the semi-literate reading this blog) should not be broadcast during the broadcast watershed period (that would be between 5:00 am and 10:00 pm). Let's have some fun at his expense.

Article 34, on the freedom of the media, at sub-Article (2) states,

The State shall not—
(a) exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium; or Freedom of expression.
(b) penalise any person for any opinion or view or the content of any broadcast, publication or dissemination.

Of course this constitutional freedom may be limited under the circumstances contemplated at Article 24(1), that is,

(1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including––
(a) the nature of the right or fundamental freedom;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
(e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

The broadcast watershed period is, among Mr Mutua's many justifications, meant to protect children. (A "child" in Kenya is any individual who has not attained the age of eighteen––Article 250). Therefore, Mr Mutua's broadcast watershed period condom ad ban is for the protection of children––which could be a new-born babe or an individual who is one day shy of his eighteenth birthday. Mr Mutua is not known for the nuanced application of guidelines.

However, Mr Mutua has not justified his condom ad ban, only qualifying that it shall not apply to condom ads by the Government or public health ads by the Government. (It would have been interesting to see Mr Mutua attempt to censure the Ministry of Health over its condom ads.) First, pornography (if that would be Mr Mutua's anti-condom ad argument) is not within the KFCB's mandate, but that of county governments (Fourth Schedule, Part 2, paragraph 13).

Second, if he relied on Article 24(1)(b), that is, "the importance of the purpose of the limitation," explained as the protection of children, he will have skipped over one or two discomfitting facts including the increasing incidences of young people having unprotected sex because their knowledge of prophylaxis is limited.

Third, protection of the children is the principal aim of Article 53(2), which would, presumably, includes their protection from the ill-effects of unprotected sex. Information is power and Mr Mutua would deny sexually active children available information about sex and protection, endangering their lives, contrary to the demands of Article 53.

I am not sure children should be denied key information about sex. Of course, the information has to be age-appropriate, but a blanket condom ad ban is asinine and gravely risky, especially in a country where current public health statistics reveal an increasing rate of childhood pregnancies and sexually transmitted infections. Mr Mutua may not realise this, but when he claims "cross-jurisdictional responsibilities" as the reason for his encroachment into administrative spheres beyond the KFCB's ken, he forgets that without a keener appreciation of that area's policy implications, he would be best served by listening more and regulating less.